BILL ANALYSIS �
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UNFINISHED BUSINESS
Bill No: SB 888
Author: Lieu (D), et al.
Amended: 6/30/11
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 6-1, 5/3/11
AYES: Anderson, Calderon, Harman, Liu, Price, Steinberg
NOES: Hancock
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SENATE FLOOR : 37-1, 6/1/11
AYES: Alquist, Anderson, Berryhill, Blakeslee, Calderon,
Cannella, Corbett, Correa, De Le�n, DeSaulnier, Dutton,
Fuller, Gaines, Harman, Hernandez, Huff, Kehoe, La Malfa,
Leno, Lieu, Liu, Lowenthal, Negrete McLeod, Padilla,
Pavley, Price, Rubio, Runner, Simitian, Steinberg,
Strickland, Vargas, Walters, Wolk, Wright, Wyland, Yee
NOES: Hancock
NO VOTE RECORDED: Emmerson, Evans
ASSEMBLY FLOOR : 75-0, 8/18/11 - See last page for vote
SUBJECT : Crime: picketing at funerals
SOURCE : Author
DIGEST : This bill makes it a misdemeanor for a person to
engage in picketing targeted at a funeral during the time
period beginning one hour prior to the funeral and ending
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one hour after the conclusion of the funeral.
Assembly Amendments make technical changes only.
Senate Floor Amendments of 5/26/11 specify that the
definition of "picketing" in this bill only applies to the
section created by this bill, and (2) define "targeted" at
a funeral as meaning directed at the deceased or funeral
attendees, based on the race, natural origin, marital
status, sex, sexual orientation, medical occupation,
activities and other specified characteristics of the
person(s) targeted.
ANALYSIS : The United States Constitution states that
"Congress shall make no law ? abridging the freedom of
speech, or of the press; or the right of the people
peaceably to assemble?" (U.S. Constitution, First
Amendment)
Existing law makes it a crime to maliciously disturb,
obstruct, detain or interfere with any person carrying or
accompanying human remains to a cemetery or funeral
establishment, or engaged in a funeral service, or an
interment. A violation of this provision is punishable by
imprisonment in state prison or county jail for a period
not to exceed to one year. (Penal Code Section 594.35(d))
Existing law provides that under the federal Fallen Heroes
Act of 2006, a person shall not engage in a demonstration
at a cemetery under the control of the National Cemetery
Administration or at Arlington National Cemetery unless the
demonstration has been approved by the cemetery
superintendent or the director of the property on which the
cemetery is located. Existing law provides that a
violation of this act is punishable by a fine, imprisonment
not to exceed one year, or by both fine and imprisonment.
(38 USC Section 2413; 18 USC Section 1387)
This bill provides that it is a misdemeanor punishable by
up to six months in jail and or/a fine of $1,000 for a
person, except upon private property, to engage in
picketing targeted at a funeral during the time period
beginning one hour prior to the funeral and ending one hour
after the conclusion of the funeral.
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This bill defines "funeral" as the ceremony or memorial
service held in connection with the burial or cremation of
a deceased person.
This bill defines "picketing", for purposes of the bill, as
protest activities engaged in by any person within 1,000
feet of a burial site, mortuary or place of worship.
This bill provides that protest activities includes
oration, speech, use of sound amplification equipment in a
manner that makes speech or oration audible to participants
in a funeral, or similar conduct that is not part of the
funeral, before an assembled group of people.
This bill provides that "targeted at" means directed at or
towards the deceased person or the attendees of a
"funeral", as defined in paragraph (1), because of
his/her/their marital status, race, natural origin, age,
sex, gender identity, sexual orientation, color, medical
condition, religious creed, ancestry, mental disability,
physical disability, profession, or activities participated
in during his/her/their lives.
This bill contains the following legislative findings and
declarations:
It is generally recognized that families have a
compelling interest in organizing and attending funerals
for deceased relatives.
The interests of families in privately and peacefully
mourning the loss of deceased relatives are violated when
funerals are disrupted for picketing.
Picketing of funerals causes emotional disturbance and
distress to grieving families who participate in
funerals.
Full opportunity exists for the exercise of freedom of
speech and other constitutional rights at times other
than within one hour prior to or during the funeral and
one hour hollowing the conclusion of the funeral.
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The purpose of this act is to protect the privacy of
grieving families and to preserve the peaceful character
of cemeteries, mortuaries, and places of worship during
the time one hour before and one hour after a funeral.
This bill contains a severability clause.
Background
Snyder v. Phelps . In Snyder v. Phelps (2011) 562 U.S. ___
the family of deceased Marine Lance Cpl. Matthew Snyder
filed a lawsuit against members of the Westboro Baptist
Church who picketed at his funeral. The family accused the
church and its founders of defamation, invasion of privacy
and the intentional infliction of emotional distress for
displaying signs that said, "Thank God for dead soldiers"
and "Fag troops" at Snyder's funeral. U.S. District Judge
Richard Bennett awarded the family $5 million in damages,
but the U.S. Court of Appeals for the Fourth Circuit held
that the judgment violated the First Amendment's
protections on religious expression. The church members'
speech is protected, "notwithstanding the distasteful and
repugnant nature of the words."
The Supreme Court affirmed the lower court's decision in an
opinion by Chief Justice John G. Roberts, Jr. The Court
held that the First Amendment shields those who stage a
protest at the funeral of a military service member from
liability. Justice Stephen J. Breyer filed a concurring
opinion in which he wrote that while he agreed with the
majority's conclusion in the case, "I do not believe that
our First Amendment analysis can stop at that point."
Justice Samuel Alito filed a lone dissent, in which he
argued: "Our profound national commitment to free and open
debate is not a license for the vicious verbal assault that
occurred in this case."
The Court in Snyder found that the case turned largely on
whether the speech was of a private or public concern
because, while the First Amendment protections of private
speech are less rigorous, speech on matters of public
concern, go to the very heart of First Amendment
protections. Whether or not something is of public or
private concern requires examining the "content, form and
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context" of that speech. They found that even though the
Westboro Church was picketing at a private funeral, their
signs were of on public issues.
The Westboro Church in the Snyder case held their protests
on public land but that alone did not put them beyond the
reach of government restrictions. Even protected speech is
subject to reasonable time, place or manner restrictions.
The Court noted that many states had enacted statutes
banning the activity in the Snyder case. However, since
those laws were not an issue in the case, the Court did not
address whether they were constitutional.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/18/11)
American Legion-Department of California
AMVETS-Department of California
Association of Los Angeles Deputy Sheriffs
Los Angeles County Sheriff's Department
Los Angeles County Stonewall Young Democrats
Los Angeles County Probation Officers Union
Peace Officers Research Association of California
Riverside Sheriffs' Association
South Bay LGBT Center
Vietnam Veterans of America-California State Council
OPPOSITION : (Verified 8/18/11)
American Civil Liberties Union
ARGUMENTS IN SUPPORT : According to the author:
"Starting in 1998, the Westboro Baptist Church started
picketing funerals. Initially, this picketing targeted
funerals of individuals that the Church believed to be
homosexual, but the Church quickly branched out to picket
other individual's funerals. Starting in 2005, the
Church started protesting at the funerals of fallen
military soldiers of the Iraq War.
"In 2006, the Westboro Baptist Church picketed the
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funeral of U.S. Marine Lance Corporal Mathew Snyder, who
died in Iraq. The picketing was made up of hateful
slogans, including anti-Catholic and homophobic
sentiments. Lance Corporal Snyder's father, Albert
Snyder, responded to the Church by lodging a civil suit
against the Westboro Baptist Church and its founding
family to seek damages.
"In March of this year, the U.S. Supreme Court ruled with
the Westboro Baptist Church in Phelps v. Snyder and
denied damages, noting that the protests were, among
other things:
on public land;
more than 1,000 feet away from the funeral; and
the protest was not unruly or loud.
"With these facts distinguished, the Court concluded that
the protesters 'had the right to be where they were.'
"SB 888 follows the Court's guidance in Phelps v. Snyder ,
ensuring that families are protected and have a time to
grieve during a funeral, while also protecting the first
amendment rights of individuals who wish to protest or
picket a funeral."
ARGUMENTS IN OPPOSITION : The ACLU states: "The bill
additionally creates super-sized no-speech zones with a
1000 foot radius. These buffer zones are far larger than
any zone upheld by the Supreme Court that served a similar
governmental purpose. See, e.g., Hill , 530 U.S. 703
(upholding an eight-foot buffer zone around people entering
a health care facility). In many cases, the immense
no-speech zones created by this bill will include public
parks and plazas in the vicinity of cemeteries, mortuaries
and churches. Yet all of the public parks, streets, and
sidewalks swept within SB 888 are traditional public
forums, "held in trust for the use of the public and, time
out of mind?used for purposes of assembly, communicating
thoughts between citizens, and discussing public
questions." Hague v. CIO , 307 U.S. 496, 515 (1939)."
ASSEMBLY FLOOR : 75-0, 8/18/11
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AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bradford, Brownley,
Buchanan, Butler, Charles Calderon, Campos, Carter,
Cedillo, Chesbro, Conway, Cook, Davis, Dickinson,
Donnelly, Eng, Feuer, Fletcher, Fong, Fuentes, Furutani,
Beth Gaines, Galgiani, Garrick, Gatto, Gordon, Grove,
Hagman, Halderman, Hall, Harkey, Hayashi, Roger
Hern�ndez, Huber, Hueso, Huffman, Jeffries, Jones,
Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mansoor,
Mendoza, Miller, Mitchell, Monning, Morrell, Nestande,
Nielsen, Norby, Olsen, Pan, Perea, V. Manuel P�rez,
Portantino, Silva, Skinner, Smyth, Solorio, Swanson,
Wagner, Wieckowski, Williams, Yamada, John A. P�rez
NO VOTE RECORDED: Bonilla, Gorell, Hill, Torres, Valadao
RJG:mw 8/18/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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